IN THE CASE OF: BOARD DATE: 24 August 2023 DOCKET NUMBER: AR20230004986 APPLICANT REQUESTS: an upgrade of his characterization of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement, undated * (3) three DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), 5 May 1975, 16 August 1976, and 24 December 1976 * DA Form 3349 (Medical Condition-Physical Profile Record), 1 December 1976 * DD Form 214 (Report of Separation from Active Duty), 27 September 1977 * letter from Army Board for Correction of Military Records (ABCMR) to Applicant, 20 October 2022 * statement from Ms. , 30 January 2023 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He was blamed for stealing a C.B. radio in 1977. He pawned the radio for a lady that came out of a pawn shop and was wrongfully and unlawfully discharged with a bad conduct discharge for something in which he did not take part. He tried to explain to the Military Police (MP) that the lady said she forgot her identification and did not have enough money to get back home, so he pawned the C.B. radio for her. He did not think anything was wrong until the MP’s called him into their office a month later. He tried to explain the situation, but they told him to shut up. The paperwork he had from the pawnshop saying he pawned the radio for a lady was never mentioned at his court- martial. b. He had to go home two weeks into basic training due to a death in his family. This event was traumatizing for him when he went back to basic training. He had loss of interest, and he was always angry and irritable. He felt devastated that his Advanced Individual Training and first duty station were at Fort Sill, Oklahoma, because he was from Lawton, Oklahoma and he was always trying to get away from home. c. A traveling review board in North Carolina said he was going to get his characterization upgraded to a general, but nothing happened. He feels like he is the victim and asks for compassion and understanding from the board, because he would never have pawned the C.B Radio if he knew it was stolen. He asks the board to take the truth of his situation and grant him relief from the bad conduct discharge he did not deserve. d. He further states, regarding his non-judicial punishment (NJP) under Article 15, UCMJ, dated 16 August 1976, where he failed to go at the time prescribed to his appointed place of duty on 24 July, 28 July, and 31 July 1976; he could not walk out in the field due to his bad knees. If the board would look at the dates and times, he always showed up, he was just late because he could not move fast. He lost the opportunity to better his life for something he still cannot do right till this day. Nothing he did warranted a bad conduct discharge. 3. The applicant enlisted in the Regular Army on 16 July 1974. The highest rank/grade he held was private first class (PFC)/E-3. 4. Special Orders Number 78, dated 19 March 1975, awarded him the military occupational specialty (MOS) 63C (General Vehicle Repairman) effective 1 March 1975. 5. On 24 March 1975, he was place on a temporary level 3 “3T” physical profile for his diagnosis of "Painful left knee." His temporary assignment limitations included: no strenuous physical activity to include no crawling, stooping, running, jumping, prolonged standing, or marching. His profile and duty limitations expired on 21 April 1975. 6. On 5 May 1975, he accepted NJP under Article 15, UCMJ, for being disrespectful in language toward staff sergeant (SSG) C., his superior non-commissioned officer (NCO), who was then in the execution of his duties, by saying to him “don’t fuck with me C.” or words to that effect. His punishment was forfeiture of $50.00 pay per month for two months. 7. Two DA Forms 3349, dated 26 June and 9 July 1975, show he was again placed on a “3T” physical profile with temporary assignment limitations of no crawling, stooping, running, jumping, prolonged standing or marching for his left knee. a. The first profile (26 June 1975), for left knee pain, expired on 25 July 1975. b. The second profile (9 July 1975), for contusions and effusion left knee, expired on 14 July 1975 8. Two DA Forms 2166-5 (Enlisted Evaluation Report (EER)), dated 26 January 1976 and 15 June 1976, show: a. He was assigned the duty position of clerk typist from July 1975 to December 1975 with additional duties as a courier and distribution clerk. His rater and indorser/senior rater recommended the applicant be reassigned to duties within his primary MOS. b. He was assigned the duty position of supply clerk/driver from January 1976 to May 1976. His rater noted he was trustworthy, reliable, and accepted responsibility. His attitude, initiative, and eagerness to accept responsibility could be attributed to his desire to be a professional Soldier. His indorser/senior rater noted the applicant had the ability to make sound and just decisions with very little supervision; taking pride in what he did and setting the example for other Soldiers in this grade to follow. His initiative, enthusiasm, motivation, and desire to be the best kept the supply system running. He was the type of young Soldier the Army needed. 9. On 16 August 1976, he accepted NJP under Article 15, UCMJ, for one charge and three specifications of failing to go at the time prescribed to his appointed place of duty on 24 July, 28 July, and 31 July 1976. His punishment included reduction to private/E-2, forfeiture of $201.00 pay per month for two months, suspended for six months and 45 days extra duty. 10. An EER, dated 7 October 1976, shows he was assigned the duty position of Track Vehicle Repairman from June 1976 to August 1976. His rater noted he could not take orders from his superiors while he was working as a wheel vehicle mechanic and has since been working in the tool room as an assistant, which is working out better. He has no NCO potential. His indorser/senior rater noted as a wheel vehicle mechanic he has done a below average job and is not very knowledgeable in his MOS. His personnel behavior and attitude are not for others to follow. Because he could not follow orders in the Maintenance Shop he has been working as a tool room assistant and is doing an average job. 11. On 1 December 1976, he was place on a “3T” physical profile for his condition of "Painful right knee," with temporary assignment limitations of no strenuous physical activity to include no crawling, stooping, running, jumping, prolonged standing or marching. His profile expired on 22 December 1976. 12. On 24 December 1976, he accepted NJP under Article 15, UCMJ, for absenting himself from his appointed place of duty. His punishment included reduction to private/E-1, forfeiture of $80.00 pay, and 14 days extra duty. 13. Special Court-Martial Order (SPCMO) Number 37, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, on 24 March 1977, shows: a. On 15 February 1977, he plead and was found guilty of one charge and one specification of stealing one Sears radio of value of about $125.00. The court sentenced him to confinement at hard labor for two months, forfeiture of $100.00 pay per month for two months, and to be discharged from the service with a bad conduct discharge. b. On 17 February 1977, the convening authority approved the courts sentence, but deferred the confinement at hard labor and forfeitures of pay for two months until such time the sentence was ordered executed unless sooner rescinded. The record of trial was forwarded to the appellate authority for appellate review. 14. SPCMO Number 87, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, on 15 September 1977, shows the sentence to bad conduct discharge, confinement at hard labor for two months and forfeiture of $100.00 pay per month for two months was adjudged on 15 February 1977 and as promulgated in SPCMO Number 37 on 24 March 1977 was finally affirmed. The unexecuted portion of the sentence to confinement at hard labor for two months and uncollected forfeitures of $100.00 pay per month for two months were remitted. Article 71(c) having been complied with; the sentence as modified would be duly executed. 15. The applicant was discharged on 27 September 1977, under the provisions of Army Regulation (AR) 635-200, chapter 11 (Dishonorable and Bad Conduct Discharge), with an under other than honorable [sic] characterization of service in the rank/grade of private (PV1/E-1). His DD Form 214 contains the following entries of information: a. He completed 3 years, 2 months, and 12 days of net active service. b. He received a Separation Program Designator Code of “JJD” and Reenlistment Code of “3.” c. Block 9f (Type of Certificate Issued) shows he was issued a DD Form 259A (Bad Conduct Discharge Certificate). 16. On 9 January 1980, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge contending that his discharge was unjust, because he had periods of good service, his MOS was wrong from the beginning, and he was not given the chance to change to a career filed that could benefit him and the Army. The ADRB found his discharge to be both proper and equitable under the circumstances and voted to deny his request on 20 April 1981. 17. A statement from Ms. , dated 30 January 2023, states she did not have knowledge of the applicant’s situation. She further states her father used to own the M. Pawn shop, however he passed away and there was no paperwork going back that far. 18. Regulatory guidance in effect at the time provided an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after such affirmed sentence has been ordered duly executed. 19. The applicant provided argument or evidence the Board should consider, along with the applicant's overall record, in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 11 states an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court- martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230004986 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1